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Judgment
As both these appeals arise out of the common Judgment,
they were heard together and are being disposed of by this common
Judgment.
Heard learned counsel for the appellants and learned counsel
for the State in both the appeals.
The appellants are aggrieved by the Judgment of conviction
and Order of sentence dated 30th April 1992, passed by the learned
2nd Additional Sessions Judge, Dhanbad, in S.T. No.49 of 1990, whereby
the appellants have been found guilty and convicted for the offence under
Sections 302 / 34 of the Indian Penal Code. The appellant
Suresh Goswami has also been found guilty and convicted for the offence
under Section 325 of the Indian Penal Code. Upon hearing on the point of
sentence, the appellants have been sentenced to undergo R.I. for life for
the offence under Sections 302 / 34 of the Indian Penal Code, and the
appellant Suresh Goswami has also been sentenced to R.I. for two years
for the offence under Section 325 of the Indian Penal Code.
According to the prosecution case, the occurrence had taken
place on 3.6.1989 at about 7:30 PM. The written report was submitted by
the informant Mahadeo Giri, before the Officer In-charge of Govindpur
Police Station stating that the wife of his nephew Lakhan Goswami and
wife of his agnate Panchu Goswami were quarreling amongst themselves
in filthy languages, in which he intervened and asked them not to quarrel.
It is alleged that Abhimanyu Goswami, s/o Panchu Goswami threatened to
assault him, if he intervened, upon which, the informant challenged him. In
the meantime, his nephew Lakhan Goswami came out of his house and
objected asking why he shall assault his uncle. It is alleged that thereupon
Abhimanyu Goswami armed with Tangi and Suresh Goswami armed with
Lathi and their father Panchu Goswami armed with Lathi came there and
Abhimanyu Goswami assaulted Lakhan Goswami by tangi and Suresh
Goswami and Panchu Goswami also assaulted him by lathi, causing
bleeding injuries on him, due to which he fell down and became
unconscious. When the informant tried to save him, Suresh Goswami
assaulted him by lathi , causing fracture in his hand and he also fell down.
Apindo Goswami (PW-3), Janardan Goswami (PW-5) and Kiran Bala Devi
(PW-4) also came there and they also saw the occurrence. It was stated
that in course of occurrence, Panchu Goswami had fallen down on stones,
causing injuries in his head and hand. As to the cause of occurrence, it is
stated that Lakhan Goswami was constructing a new house and
Panchu Goswami had dug a drain by the side of the house, due to which
ladies were quarreling amongst themselves. On the basis of the written
report, Govindpur P.S. Case No.123 of 1989 was instituted for the offences
under Sections 323, 324, 325, 326 and 307 of the Indian Penal code and
investigation was taken up. Lakhan Goswami died in course of treatment
at Sadar Hospital, Dhanbad, and accordingly, Section 302 of the Indian
Penal Code was also added. After investigation, the police submitted the
charge-sheet in the case against the accused appellants.
Upon commitment of the case to the Court of Session, charge
was framed against all the three accused for the offence under sections
302 / 34 of the Indian Penal Code and a separate charge was framed
against the accused Suresh Goswami for the offence under Section 325 of
the Indian Penal Code, and upon the accused persons'' pleading not guilty
claiming to be tried, they were put to trial.
In course of trial, ten witnesses were examined on behalf of
the prosecution and three witnesses were examined on behalf of the
defence. PW-7, Mahadeo Giri (Goswami) is the informant in the case
and he has fully supported the prosecution case. He has stated that the
occurrence had taken place on 3.6.1989. Wives of Lakhan Goswami and
Panchu Goswami were quarreling in filthy languages, which he did not like
and he asked them not to quarrel, whereupon, he was threatened by
Abhimanyu. This witness challenged him, and Lakhan Goswami also
intervened and it is alleged that accused Abhimanyu Goswami armed with
tangi, Panchu and Suresh armed with lathi came there and Abhimanyu
assaulted Lakhan by tangi causing injuries on his head, whereupon,
Lakhan fell down and accused Panchu and Suresh assaulted him by lathi.
This witness came to his rescue, whereupon, Suresh assaulted him by
lathi causing fracture in his hand. Panchu had assaulted him by lathi,
whereupon he also fell down. The witnesses had also seen the
occurrence. While fleeing away, Panchu Goswami fell down on the stones
kept there, causing injuries on his head. This witness has further stated
that Lakhan Goswami was constructing his house and adjacent thereto,
Panchu Goswami had dug a big drain causing threat of the house falling
down, due to which, the ladies were quarreling among themselves. Both
the injured were brought to the police station, where this witness gave a
written report to the police, which was written by Nabo Gopal Goswami, as
dictated by this witness, upon which, he put his signature. He identified the
written report, which was marked as Exhibit-6. This witness has further
stated that as the condition of Lakahn was precarious, he was sent to
hospital and this witness was also sent to hospital later, where he was
treated and the X-ray of his injury was also done. Lakhan was referred to
Sadar Hospital, Dhanbad, where he was admitted and in the morning, this
witness was informed that Lakhan had died in the hospital. This witness
has identified the accused persons in the Court. This witness was put to
extensive cross-examination by the prosecution, but except for the minor
discrepancies, there is nothing of much importance in his
cross-examination, so as to discredit his testimony.
PW-2 Kadam Devi, who is the wife of the deceased,
PW-3 Apindo Goswami, who is the nephew of the informant, PW-4
Kiran Bala Devi, who is the wife of the informant and PW-5
Janardan Goswami, who is also the nephew of the informant, have fully
supported the prosecution case as eye witnesses to the occurrence, giving
almost the same details of the occurrence as stated by the informant in his
evidence. PW-2 Kadam Devi, who is the wife of the deceased, has also
stated that on being referred to Dhanbad Sadar Hospital, she along with
Apindo Goswami and Ashok, brought the deceased to Sadar hospital,
Dhanbad, where he was admitted in the same night at about 12:00 AM and
by 3 to 4 AM in the same night, the deceased died. This fact is also
supported by PW-3 Apindo Goswami in his evidence, who has also
supported the entire prosecution case as eyewitness to the occurrence.
Suggestion was given to PW-3 Apindo Goswami in his cross-examination,
whether he had stated before the police that when he reached the place of
occurrence, he had seen the deceased already fallen down in injured
condition, to which, this witness has replied in negative, and stated that
when he reached the place of occurrence, he saw the deceased fallen and
the accused persons were still assaulting him. There is nothing of much
importance in the cross-examinations of the other aforesaid witnesses,
who have otherwise fully supported the prosecution case as eyewitness to
the occurrence.
PW-6 Dr. Bhuwaneswar Sharma had examined injuries of the
deceased while he was alive, as also of the informant. He has stated that
upon examination of the deceased, he found one lacerated wound 2 1/2" x
1/2" x bone deep, with depressed fracture of right parietal bone. He has
stated that the condition of Lakhan Goswami was not good and there were
symptoms of head injury, therefore, he referred the injured to Sadar
Hospital, Dhanbad. He has proved the injury report of Lakhan Goswami to
be in his pen and signature, which was marked as Exhibit-5.
On the same day, he had examined Mahadeo Goswami and had
found the following injuries on him:-
(i) Abrasion 1"x1/3"x1" on the left wrist caused by hard and blunt substance. There was discontinuation of radious bone. There was fracture of left radious. (ii) Abrasion 1/2"x1/3" on right side of chest caused by hard blunt substance. (iii) Abrasion 1 1/2" x 1/3" on the back of chest caused by hard and blunt substance.
He has also stated that he had referred Mahadeo Giri (Goswami) to
X-Ray clinic of Dr. Saha of Govindpur. X-Ray plates and reports were
shown to him and he has proved two X-Ray reports and they were marked
as Exhibits-4 and 4/1. He has identified the injury report of Mahadeo Giri
(Goswami) to be in his pen and signature and was marked as Exhibit-5/1.
In his cross-examination, this witness has stated that on the same day had
had also examined Panchu Giri (Goswami) and had found one lacerated
wound on his skull and abrasions on back of his chest and right forearm on
him also. He has identified Panchu Giri in the Court.
PW-9 Dr. A.S. Mandal, Radiologist, and his medical attendant
PW-10 Dasrath Mandal have been examined to prove the X-Ray of the
injuries of the informant Mahadeo Giri (Goswami), and they have proved
this fact.
PW-8 Dr. D.K. Dhiraj had conducted the post-mortem
examination on the dead body of Lakhan Goswami, and had found the
following ante-mortem injuries:-
(i) Stiched wound with ununited edges and lacerated character 1/2" long with two stitches on the right side of the forehead, 3 1/2" above outer end of the right brow. (ii) Diffused swelling of the parietals and temporal areas and left side of maxillary and zygomatic area were seen with ecchymosis underneath. (iii) On further dissection contusion of the scalp in parietal frontal and temporal areas were seen in presence of blood clots under the scalp 1/5" to 1/4" thick in those areas. Depressed fractures of right parietal area 2"x 1&1/4" and right temporo-parietal area 11/2" x1" were seen. Fracture line extended from right parietal bone posteriorilly for 41/2" to right side of occipital and crossed over to opposite side to parietal bone to bifurcate one branch passing to over left temporal bone. Subdural ecchymosis was seen all over the upper surface of the cerebral cortex.
He has also stated that thoraco-abdominal organs were pale,
stomach contained 30 CC of blackish fluid, and the death resulted from
coma due to blunt force craniocerebral injury. This witness has stated that
the injuries may be caused by handle of tangi. He has also stated that
these injuries were sufficient to cause death in the ordinary course of
nature. This witness identified the post-mortem report to be in his pen and
signature, which was marked Exhibit-7. This witness was cross examined
and was again examined as Court witness in detail.
PW-1 Gopal Singh is the I.O. of the case. This witness has
stated that on 3.6.1989, Mahadeo Goswami came to Police Station in
injured condition along with Lakhan Goswami, who was also injured, and
gave the written report, on the basis of which, Govindpur P.S. Case
No.123 of 1989 was instituted and investigation was taken up. He has
proved the endorsement on the written report to be in the writing and
signature of Om Prakash Singh, Officer In-charge of the Police Station,
which was marked as Exhibit-1. He has also proved the FIR prepared on
the basis of the written report, which was marked as Exhibit-2. This
witness has also proved the requisition of the injury reports of both the
injureds, which were marked Exhibits-3 and 3/1. This witness has also
stated that he went to the hospital, where he was informed that the
conditions of the injurdes were not good and they had been referred to
Sadar Hospital, Dhanbad. On 4.6.1989, he was informed about the death
of Lakhan Goswami at Sadar Hospital, Dhanbad. This witness has also
given description of the place of occurrence visited by him, and has stated
that there was no material relating to the offence, which could be seized,
except the blood stain, which also could not be seized. He has
stated about the arrest of the accused persons and the investigations
made by him and has stated that the charge-sheet was submitted through
Om Prakash Singh, Officer In-charge of the Police Station. In his
cross-examination he has stated that the accused Panchu Goswami had
also come to the Police Station and he was also having head injury, which
appeared to be simple. On the basis of the statement of Panchu Goswami,
one Sanha was also recorded in the Police Station. He has stated that he
prepared the requisition for injury report of Panchu Goswami, which he
proved and was marked as Exhibit-B. He has also stated in his
cross-examination that he had made investigation in Govindpur P.S. Case
No.268 of 89 also, which was recorded on the basis of the statement of
Devki Devi, wife of Panchu, in which he had submitted the final form and
he had no knowledge, whether the same was accepted by the Court or
not.
Three witness have been examined on behalf of the defence,
who are DW-1, Laxmi Narayan Goswami, maternal uncle of the appellant
Suresh Goswami, DW-2 Prabhulal Pandey and DW-3 Motilal Kumbhakar,
who have been examined to prove that on the date of occurrence, the
accused Suresh Goswami was in the house of his maternal uncle,
Laxmi Narayan Goswami in a different village. Thus, these witnesses
have been examined only to prove the alibi of the accused appellant
Suresh Goswami.
Learned counsel for the appellants has submitted that the
impugned Judgment of conviction and Order of sentence passed by the
Court below are absolutely illegal and cannot be sustained in the eyes of
law, in as much as, the evidence on record are full of discrepancies. It is
submitted that the prosecution case has been supported only by the
interested witness and no independent witness has come forward to
support the prosecution case. It has also been submitted that the
occurrence had taken place in the quarrel of two ladies, and in the FIR, as
also in the evidence, it has come that the informant himself had given the
challenge and provocation for the occurrence. Leaned counsel submitted
that there is a counter version of the case, in which, the accused
Panchu Goswami was also injured. Learned counsel also submitted that
the ocular evidence of the witnesses are not at all corroborated by the
medical evidence, inasmuch as, no injury caused by sharp cutting weapon
was found on the deceased, though there is specific allegation that he was
assaulted by tangi. Learned counsel accordingly, submitted that it is a fit
case, in which, the appellants were entitled at least to the benefits of
doubt.
Learned counsel for the State on the other hand has opposed
the prayer, submitting that the witnesses have fully supported the
prosecution case and there may be only minor discrepancies in the
evidence here and there, which are only normal in such cases. Learned
counsel submitted that the witnesses are the natural witnesses of the
occurrence, being the family members and the neighbours, who only were
present at the time of occurrence. Learned counsel submitted that the
witnesses have fully supported the prosecution case and the ocular
evidence of the witnesses are fully corroborated by the medical evidence
of PW-6 Dr. Bhuwaneshwar Sharma, who had examined the deceased
while he was injured and also the informant of the case, and has proved
the injury reports. The deceased was referred by this witness for
his treatment to Sadar Hospital, Dhanbad, where he died. PW-8
Dr. D.K. Dhiraj had conducted the post-mortem examination of the
deceased and found the injuries on him to be sufficient in normal course to
cause the death of the deceased, and the injuries could be caused by the
handle of tangi. As such, his evidence also corroborates the ocular
evidence of the witnesses. Learned counsel accordingly, submitted that
the prosecution has been able to prove all the charges against the
accused persons beyond all reasonable doubts.
Having heard learned counsels for both the sides and upon
going through the record, we find that the occurrence is fully supported by
PW-7 Mahadeo Goswami, the informant of the case, who was also
injured in the occurrence. PW-2 Kadam Devi, the wife of the
deceased, PW-3 Apindo Goswami, the nephew of the informant, PW-4
Kiran Bala Devi, the wife of the informant and PW-5 Janardan Goswami,
the nephew of the informant, have also fully supported the prosecution
case as eye witnesses to the occurrence, giving almost the same details of
the occurrence as stated by the informant in his evidence. The ocular
evidence of these witnesses are also corroborated by the medical
evidence of PW-6 Dr. Bhuwaneshwar Sharma and injury reports proved
by him, as also PW-8 Dr. D.K. Dhiraj, who had conducted the post-mortem
examination on the deceased, as also by the post-mortem report proved
by him as Exhibit-7, who also stated that the injuries on the deceased
were sufficient in ordinary course of nature to cause the death of the
deceased, and the injuries could be caused by the handle of tangi. We find
that such injuries could even be caused by blunt portion of tangi as also by
lathi. PW-9 Dr. A.S. Mandal, Radiologist, and his medical attendant
PW-10 Dasrath Mandal, have also proved the fact that X-Ray of the
injuries of the informant were done. Though the appellant
Panchu Goswami was also found to be injured, as proved by PW-6
Dr. Bhuwaneswar Sharma, but the fact remains that his injuries have not
been concealed by the prosecution, rather they have been explained in the
FIR itself, as also in the evidence of the informant PW-7 Mahadeo Giri
(Goswami), who has stated that while fleeing away, Panchu Goswami had
fallen down on the stones causing injuries on him. Though it is submitted
by the learned counsel for the appellants that the informant himself had
given the challenge to the accused persons, but the fact remains that as
per the prosecution case, as also the evidence on record, the informant
had only tried to pacify the quarreling ladies, and it was the accused
Abhimanyu Goswami, who had given the first provocation to the
prosecution side.
We are of the considered view that on the basis of the
evidence on record, the prosecution has been able to prove all the charges
against the accused appellants beyond all reasonable doubts and the
appellants have been rightly convicted and sentenced for the offences
charged.
In view of the aforementioned discussions, we find no illegality
in the impugned Judgment of conviction and Order of sentence dated
30th April 1992 passed by the learned 2nd Additional Sessions Judge,
Dhanbad, in S.T. No.49 of 1990, which we, hereby, affirm. The appellants
are on bail and their bail bonds are hereby, canceled. The appellants are
directed to surrender in the Court below forthwith for serving out the
sentences. The Trial Court below is also directed to issue process
forthwith, compelling the surrender / production of the appellants for
serving out the sentence.
Both these appeals are accordingly, dismissed. Let the Lower
Court Records be sent back forthwith along with a copy of this Judgment.